The Rural Municipality of Baildon’s decision to suspend Coun. Jerry Kaiser for an indefinite time amounted to an unauthorized removal from office and must be overturned, a judge has ruled.
In a decision released in late January, King’s Bench of Saskatchewan Justice M.T. Megaw determined that a municipal council’s power to suspend a member for a Code of Ethics contravention did not permit it to impose its will long-term — only temporarily — or “usurp the democratic process” by permanently removing the member from elected office.
Moreover, he ruled that Baildon council did not have the legislative authority to impose the sanctions and did not provide Kaiser — councillor for division 5 — with procedural fairness before imposing the suspension resolution.
“The applicant is a duly elected member of council. What council is doing is removing him from the position to which he has been elected and to which office he is entitled to hold,” wrote Megaw.
“Rural municipality council members are elected in a general election to hold office. The democratic will of citizens cannot be interfered with lightly and cannot be interfered with on the whim of any authority such as a council or any other elected body.”
Background
The RM council voted during a special meeting in November 2021 to suspend Kaiser — he was not in attendance — and remove him from all committees immediately and indefinitely.
He could have avoided this suspension if he had written an apology in the Moose Jaw Express to ratepayers for his alleged wrongdoings over the years — as per an investigative report produced in summer 2021 — and acknowledged the report as true, and if he verbally apologized to council and office staff.
Council proposed these sanctions during its October 2021 meeting and informed Kaiser by letter, but he indicated that he did not intend to comply, denied the allegations, and would appeal the report — which he never did.
Legal arguments
The RM’s lawyers argued that Kaiser’s actions and behaviours left the organization with no option but to take these steps. Further, they argued the apology didn’t need to be sincere; they just wanted the councillor to apologize publicly and directly to the affected individuals and publicly admit what he did, as per the investigative report.
Meanwhile, Kaiser’s legal counsel argued that the suspension resolution was illegal and beyond council’s jurisdiction, that council did not provide him with a fair hearing before implementing the resolution, that the apology infringed on his Charter rights and that there was a “reasonable apprehension of bias” in the resolutions.
He also argued that council’s public conduct policy conflicted with The Local Authority Freedom of Information and Protection of Privacy Act (LAFOIP) and was beyond the legal power of The Municipalities Act.
Judge’s decision
The record shows that while the special RM council meeting was advertised as allowing members to participate in a “municipal leaders roles and responsibilities webinar” and that Kaiser was aware of that purpose, the materials did not indicate imposing the suspension would be discussed, Justice Megaw said.
Legislation does not give councils the authority to remove a councillor from office for ethics breaches permanently — only the ability to impose sanctions — and instead, that authority is reserved to the Lieutenant Governor in Council via The Municipalities Act (Act), the judge said.
“Council is not entitled to usurp the powers vested in the Lieutenant Governor in council pursuant to the Act,” said Justice Megaw.
The RM argued that it had “tremendous leeway” via section 93.1 of the Act to enact an appropriate remedy and was justified in imposing the sanctions because of the investigative report’s findings. However, Megaw noted the organization did not identify any specific power under that section to remove a councillor from office.
“There is no question but that Mr. Kaiser’s behaviour has been both difficult and inappropriate … ,” the justice said. “However, I determine that council’s frustration with the circumstances cannot drive a finding of their authority to act beyond that mandated by the legislation.”
Megaw decided that since the suspension resolution could not stand, he did not have to rule on Kaiser’s Charter rights being breached since he was no longer compelled to act in a certain way.
Since Baildon council owed Kaiser a “moderate degree of procedural fairness,” Megaw ruled that it complied with that duty with the sanctions since it notified him but failed to comply with the suspension because it failed to advise him about that topic during the special meeting.
Meanwhile, the justice was unable to conclude that council’s actions displayed anything showing bias or apprehension of bias.
Also, he dismissed Kaiser’s argument that the public conduct policy conflicted with the LAFOIP because he could still obtain information from the office. Moreover, the policy was within the legislated authority of the RM via the Act.
Justice Megaw added that the RM owed Kaiser $1,500 in fixed costs because of his legal success here.
